A Radically Transformed Restatement for Conflicts

Abstract

An earlier draft of this same paper was originally uploaded on SSRN on January 23, 2015, under a slightly different title. In uploading this final draft, the original paper got deleted (together with its date of submission and its record of downloads). It is is based on a talk presented at the January 3, 2015 Annual Meeting of the Association of American Law Schools. It is written up for publication with other panelists’ papers in the University of Illinois Law Review. Both drafts, and the talk on which they were based, propose a radical transformation in the way ALI Restatements are written in the field of choice of law. It argues that the projected new Restatement (Third) of Conflict of Laws, insofar as choice of law is concerned, can and should be built on the best foundation we have — the constitutional opinions of the United States Supreme Court dealing with the conflict of laws, and the application of the Court’s methods to common-law conflicts. Offering critical commentary on current cases, the paper proposes a different way of classifying and organizing cases, not by kind of claim, but rather by kind of conflict. This can be achieved through familiar analytic methods, and tested against constitutional ground rules. In so doing it debunks much received wisdom. The Article carries interest-analytic thinking to its logical conclusions to create a complete system of choice of law.